MaliceSource: Harvard Law Review, Vol. 8, No. 8 (Mar. 25, 1895), pp. 499-501Published by: The Harvard Law Review AssociationStable URL: http://www.jstor.org/stable/1321659 .

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NOTES. 499

cases enough to make a contract, and, according to the opinion of the majority, it makes one in this case. The contract is to sell goods and to sign a written paper as evidence, and because one of the parties refuses to sign the paper, non sequid/r that the other may not prove the contract by other legal evidence.

'L'he New York Court divided in the same way on the same question in i86o. Pratt v. The Hudson River R. R., 2I N. Y. 305.

COURT AND JURY. - During the trial of the case of Cahill v. Chicago, Milwauikee &- St. Paul Railway Co., in the Circuiit Court of the United States at Chicago (Chicago Law Journal, January, 1895, P. 4), the judge directed the jury to find a verdict for the defendant. This one of the jurymen refused to do, and he was, as a consequence, ordered into the cus- tody of the marslhal. Before the question of contempt, however, came on for hearing, the verdict was accepted by the plaintiff's attorney sub- ject to exceptions. The point raised during the trial was, nevertheless, of such novelty and importance that it received no little discussion in the current papers. The reason why such questions seldom arise is, probably, because judges ordinarily try to avoid coming into conflict with the jury, and generally, in somie tactful manner or other, avoid the dispute. Indeed, such finesse is almost always necessary in handlinlg a somewhat unmanageable body like our jury, whlich is much easier led than driven. In a very similar case in Vermont, for example, the judge told the jury he would not insist if they thought his action wrong, but that they had better consider the situation carefully before coming to any conclusion. They followed his advice, deliberated, and finally went his way. Here, however, no such conciliatory measures were adopted, and the result was a temporary conflict, in which the rights of the jury were substantially involved. It would seem as if Biishells Case (Vaughan, 135, 142, I47-149), decided in I670, ha(l settled the law on this subject once for all. Indeied, although that decision might well have been re;garded as somewhat weakened becatuse it wenit on a conception of the jury which no longer prevails (Thayer's Cas. on Evidence, 5-19), it has nevertheless been considered undoubted law up to the present time; and wisely so, it would appear. It is only right thtt the functions of the court, as trier of law, and the juiry, as trier of fact, should be carefully distinguished (Thayer's Cas. on Evidence, 143-2 38), and althouglh the juryman would be undoubtedly justified, legally and morally, in returninig a finding of facts which he does not believe in, if so ordered to do, yet it is hard to see what right the judge has to coerce the jury to arrive at his result. An honest man, laboring under a misuinderstanding as to the weight and meaniing of the words " law and fact " in his oath, miglht well refuse to tell what he regarded as a gross lie. The advantage of pun- ishing him for so doing is by no meanis apparent, as such a metlhod is, it woould seem, against the usually accepted doctrine, and is at best a use- less exercise of authority, when the same result might be as easily accom- plished in a more peaceful way.

MALICE. -A point of considerable interest, though not entirely new, has just been decided by Kekewich, J., in the recent English case of Trollope &- Sonzs et aL. v. London Buildingg Trades Federation (ii The

VOL. VIII.-8 66

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500 HAAR VARD LA W RE VIE W.

Times L. R. 228). The defendant trades union accused the plaintiffs of discriminating against union men, contrary to an agreement with the defendant made by the plaintiffs and other builders. Accordingly, the defendant published alnd circulated widely a large yellow poster with a " mourning border," headed " Trollope's Black List," giving the names of non-union men employed at the firm's works, and the names of men who had remainied on the works after the commencement of a recent strike ordered by the defendant. Messrs. Trollope and several of their employees named in the "black list," brought suit for malicious interfer- ence with their business, and nmoved for an interlocutory injunction on the ground that the act of the defendants tended to coerce the firm's workmen into leaving, to deter others froin entering its employ, and in general to persecute the plaintiffs and bring them into odium and con- tempt with those who might otherwise deal with them. The injunction was granted, and Mr. Justice Kekewich expressly rested his decision on some remarks of Lord Field in the case of The Grand Mogucl Steamship Co. v. Mafcgregor ('92 App. Cas. 5I, 52). In that case Lord Field relied on the opinioni of Lord Holt in Keeble v. Heckering-ill (i i East, 574), citing these words: " If the acts complained of, though done in the way and under the guise of competition or other lawful riglht, are in tlhemselves violent or purely malicious, or have for their ultimate object injury to another from ill-will to him, andi not the pursuit of lawful rights," then they are actionable if the plaintiff sustainis damage tlhereby. In the opinion of Kekewich, J., the principal case fell within the lines laid down by Lords Holt and Field. Altlhough the defendants souight remotely some benefit to themselves., their principal motive was to injure the plaintiffs, "and to prevent them from carryinig on their ordinary trade or business with the freedom which was the privilege of Englishmen."

The principles of law underlying this decision seem perfectly sound, and the conclusion correct, assuming the circular to have the effect at- tributed to it by the court. The case belongs to that class of malicious wrongs, not very common, where the damage consists in influencing third persons uinder no legal duty to the plaintiff. The labor troubles of the past few years have presented us frequently with cases of malicious con- duct uncommon in former times, and toward whose legal construction the older books give little help. The result has been a noticeable develop- nment of this branch of torts within a very short time. It is now generally accepted that a malicious interference with the plaintiffs vested rights, even if they be of contract only, is actionable. But where the act com- plained of consists in maliciously influencing persons who have not yet entered into any legal relation with the plaintiff, the law is by no means generally settled yet. Since Temlperton v. Russell ('3, i Q B. D. 715), there has been a decided tendency toward making it a tort maliciously to induce others not to deal or contract with the plaintiff. There are numerous decisions in this country recognizing such a principle, and the principal case seems to belong to this class. For the defendants to circu- late the poster was not unlawful, in one sense of the word. But where their principal object was to injure the plaintiff, and thei: oxwn welfare was only remotely considered, the element of damage to the plaintiff would seem to outweigh the benefit to the defendants of freedom to pro- tect and furtlier their interests. It may well be that in cases of this sort the defendants' motives might become material. But in tlle principal case it hardly seems necessary to go beyond external tests of liability.

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NOTES. 501

Quite aside from the defendants' motives, their act probably exceeded the legitimate bounds of competition.

In 8 HARVARD LAW REVIEW I., Mr. Juistice Holmes emphasized the fact that these cases are after all decided on broad grounds of public policy, and that such policy is determined by our economic experience. That is true of most judicial legislation. Our experience with labor organ- izations is not as yet very extensive, and the results aie not likely to be summed up alike by all judges. Since the principal case a similar deci- sion has been rendered by Kennedy, J. Flood v. Jackson, Q. B. D., March 5. And an interesting New Jersey case in the Recent Cases, page 510, infra, is to the same effect. So that the new cause of action seems to be popular.

COMPARATIVE CITATION OF REPORTS. - The editor of " Legal Bibliog- raplhy " has compiled some interesting statistics of the frequency with which the judges of a State cite and rely upon foreign reports. His tables slhow the result of a count made of the citationis in the judgments reported in the curre4t volume of each set of State reports, and of the United States Reports, omitting, of course, the citations by each court of its own decisions.

Four jurisdictions are cited beyond comparison more than any others. Two counts, the first taken before the reports of thirteen less imnportant States had been examined, the second the final one, showed the fol- lowing result: -

First Count. Final.

United States . .1.1. . . . . . . . 1137 i669 English . . . . . . . . . . . . . . . . . 1483 1594 New York . . . . . . . . . . . . . . . . I I64 1424 Massachusetts .1120 I 268

Next in rank { ieannslvnia. 446 8

Seven of the States omitted in the first count were recently admitted; the other six were States before I865 (one was of the original thirteen), but it would seem that the greater part of the additional citations came from the reports of the new States, for the additions make two marked changes; they bring the United States Reports up from a poor third to an easy first, and they bring California up from a tie for ninth place to fifth with a showing sixty per cent better than her next competitor. This seems to point, though not surely, to the establishment of a distinct Western school of jurisprudence, which relies chiefly upon the two sets of reports last named, and it suggests an interesting question whetlher any tendency to uniformity in State jurisprudence mnay not be prevented or seriously arrested by the presence of two schools, a Western and an Eastern one.

To present an accurate result from one point of view, the tables should of course have taken into account the small number of citable cases in the reports of the smaller States. If, for instance, instead of sixteen volumes of Rhode Island, there were one hundred and fifty, as there are of Illinois, and the frequency of citation were maintained, Rhode Island would stand ninth, next but one after Illinois, instead of in her present position of thirty-sixth. From the point of view of a pur- chaser of law books, which is the purpose for which the statistics were compiled, that is just as much her misfortune, although not her fault.

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